Ledbetter Fair Pay Act

How the President Can Foster the “Civil and Honest” Debate He Called For

by Hans Bader on January 17, 2011 · 1 comment

in Culture, Legal, Personal Liberty, Politics as Usual, Sanctimony, Zeitgeist

In his speech in Tucson, where federal Judge John Roll was murdered, President Obama said that “only a more civil and honest public discourse can help us face up to our challenges as a nation.” But the President himself has often failed to live up to this aspiration, as his dishonest attacks on the judiciary, and his long line of broken campaign promises, illustrate. (Obama’s broken promises include false claims that he would implement a “net spending cut,” not raise taxes on anyone making less than $250,000, and not prevent anyone from “keeping” their existing health coverage.)

Some of Obama’s attacks on the judiciary have just exaggerated the scope of Supreme Court decisions for political gain.  For example, he deceptively claimed that the Supreme Court’s First Amendment ruling in Citizens United, which allowed U.S. companies and unions to spend money on political ads, “reversed a century of law” to allow “foreign corporations” to “spend without limit in our elections.”  (In response, Justice Alito silently mouthed the words “not true” when Obama attacked the Supreme Court for this ruling at the State of the Union Address, at which the Justices were present as invited guests).  In reality, as I noted earlier, the Supreme Court’s ruling did not lift restrictions on foreign companies; it did not call into question the 1907 federal law banning corporate contributions to politicians; and it overturned only one past Supreme Court decision, the Supreme Court’s controversial, 5-to-4 decision in Austin v. Michigan Chamber of Commerce (1990), a ruling that deserved to be overturned because it was itself “at odds with prior precedent.”

But other times, Obama’s attacks have been completely false — such as his attacks on the Supreme Court’s decision in Ledbetter v. Goodyear, which were deeply misleading, as legal commentators like Stuart Taylor of the National Journal have pointed out.

Obama didn’t let facts get in the way of a good story, or milking a political wedge issue, when he signed into law his very first legislation, the Lilly Ledbetter Fair Pay Act, which overruled the Supreme Court’s decision in the Ledbetter case. (In that case, the Supreme Court enforced the 180-day deadline for bringing pay discrimination claims contained in the federal discrimination law with the shortest deadline, Title VII. Other laws, like the Equal Pay Act, have much longer deadlines, like 3 years).

Obama falsely claimed that Lilly Ledbetter, whose pay discrimination claim was dismissed by the Supreme Court as untimely, worked at Goodyear “for nearly two decades before discovering that for years, she was paid less than her male colleagues for doing the very same work.” Actually, Ledbetter knew by 1992, if not earlier, that she was being paid less than the male employees she claimed should have been paid the same as her. Small wonder that the  Supreme Court’s 2007 ruling in Ledbetter v. Goodyear dismissed her claim as untimely. (As Stuart Taylor notes, she brought her discrimination claim only after the supervisor she accused of discrimination had died, and shortly before she retired.)

The White House statement accompanying Obama’s claim made additional false claims about the Supreme Court’s ruling.  It dishonestly claimed that the Supreme Court ruled that an employer can avoid discrimination claims just by concealing discrimination for 180 days — a claim flatly at odds with language in the Supreme Court’s decision, like footnote 10.

In an assertion parroted by gullible reporters, it claimed that “The Court ruled that employees subject to pay discrimination like Lilly Ledbetter must file a claim within 180 days of the employer’s original decision to pay them less . . . even if the employee did not discover the discriminatory reduction in pay until much later (check out Justice Alito’s arguments in the Court’s opinion).”

That claim was knowingly false, since it was contradicted by passages in the very court decision the White House linked to.  First, the Court never said there was a rigid deadline that bars claims by employees who “did not discover” discrimination “until much later.” Ledbetter never argued that the deadline should be waived or suspended based on her employer concealing discrimination against her, because she in fact knew for years about the pay disparity she later sued over. If she truly had been in the dark about the alleged discrimination, she could have sought to take advantage of exceptions to the deadline that suspend it, like waiver, estoppel, and equitable tolling, under the Supreme Court’s decision in Zipes v. Trans World Airlines (1982). But she never made that argument, because, as she testified in her deposition, she had been told many years earlier that she was being paid less than the men she later claimed ought to have been paid the same as her.

Ledbetter did not even argue that the outcome of her case would be affected by an even broader extension to the deadline for employees who are unaware of the discrimination against them known as the so-called discovery rule. As the Supreme Court specifically noted in footnote 10 of its decision, “we have previously declined to address whether Title VII suits are amenable to a discovery rule. . . .Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue.”  In short, since Ledbetter had long known of the facts underlying her discrimination claim, relaxing the deadline for employees who “did not discover” the discrimination until much later would have done her no good.

Thus, it was obviously wrong for the White House to claim that the Supreme Court was barring discrimination claims irrespective of whether “the employee did not discover the discriminatory reduction in pay until much later.”

Moreover, the Supreme Court expressly noted that the plaintiff could have pressed her claim instead under the Equal Pay Act, which had a longer deadline for suing (usually 3 years) and more generous rules for when the deadline starts running. But her lawyer foolishly failed to preserve that claim, which was a mistake, as he admitted to the Supreme Court. The Supreme Court responded by noting, “Petitioner, having abandoned her claim under the Equal Pay Act, asks us to deviate from our prior decisions in order to permit her to assert her claim under Title VII.”

Lawyers like Paul Mirengoff have repeatedly chided Obama and the White House for telling tall tales about the Ledbetter case.   During the 2008 election campaign, both Obama and state democratic parties made false claims about the Ledbetter case, in order to use it as a political wedge issue — claims that were mindlessly parroted by some in the media.

A good first step for Obama in fostering “civil and honest” debate would be to engage in it himself, by no longer distorting court rulings for political gain.

Why Supreme Court Justice May Have Been So Annoyed at the President’s State of the Union Address

by Hans Bader on February 1, 2010

in Employment, Labor, Legal, Nanny State, Personal Liberty, Politics as Usual, Sanctimony

At the president’s recent State of the Union address, he misleadingly attacked the Supreme Court for supposedly “reversing a century of law“ restricting corporate spending on political campaigns in its ruling this month in Citizens United v. FEC.

In response, an annoyed Supreme Court Justice Samuel Alito, who was attending the speech as an invited guest, apparently mouthed the words “not true,” although his words were not audible and did not interrupt the president’s speech.  (Obama was criticizing a Supreme Court ruling that struck down a recent federal restriction on corporations’ ability to criticize politicians.  The ruling, which was based on the First Amendment, said it was not invalidating a century-old 1907 law that bans corporations from making donations to politicians, who have long leaned on corporations to give money to their pet causes.  The ruling also did not lift restrictions on foreign corporations.  I earlier explained in the New York Times why corporations logically do have free speech rights.)

Maybe Justice Alito’s annoyance was cumulative, and based as much on the president’s past lies about an earlier Supreme Court ruling authored by Alito, as on his misleading criticism of the Supreme Court’s recent ruling.   Past lies make later falsehoods seem less like innocent mistakes.

In his 2008 campaign, and again in 2009, Obama criticized Justice Alito’s decision in Ledbetter v. Goodyear, which did not, contrary to the president’s claims, create a rigid 180 day deadline for bringing pay discrimination claims after an employee’s pay is set, regardless of whether the worker couldn’t have discovered the discrimination until years later.  (The deadline was 180 days, with various common-sense exceptions for hoodwinked employees, under one federal law, called Title VII.  But it is generally three years under another federal law, the Equal Pay Act, that also has more generous accrual rules.  Most employees could evade the short deadline of Title VII simply by having the sense to sue under the Equal Pay Act as well.  Alito’s ruling left workers with ample time to sue over discrimination, contrary to what Obama claimed.  Lilly Ledbetter lost her discrimination case because she waited until 1998 to file a complaint, despite admitting in her deposition that she knew her pay was low by 1992.)
I documented this in my commentary about the Supreme Court last year.  National Journal’s Stuart Taylor (a critic of the Supreme Court’s recent ruling in favor of corporations), and lawyers Paul Mirengoff and Ed Whelan, also described how Obama repeatedly distorted what the Supreme Court said in the Ledbetter case.

Economists Give Obama Failing Grade; New Bailouts Demanded As Obama Breaks Promises

by Hans Bader on March 12, 2009 · 2 comments

in Bailout Watch, Economy, Employment, Labor, Politics as Usual, Precaution & Risk, Regulation, Sanctimony, Stimulus to Nowhere

Obama gets a failing grade from economists. “U.S. President Barack Obama and Treasury Secretary Timothy Geithner received failing grades for their efforts to revive the economy from participants in the latest Wall Street Journal forecasting survey.”

Not content with the $8 trillion the Obama Administration has already committed for bailouts, pork, and welfare, Treasury Secretary Geithner, who was confirmed by the Senate despite cheating on his taxes, wants to spend $100 billion on IMF loans to bail out struggling nations in Eastern Europe and elsewhere — even though many European “officials doubt the wisdom of falling deeply into debt to create jobs and halt the plunge in consumer demand, as the United States is doing.”

Wal-Mart’s stock rating has been downgraded due to the possible passage of card-check legislation supported by Obama, which could lead to “diminished workforce flexibility” and pay based on “seniority” rather than merit, as a result of compulsory arbitration provisions contained in the bill. (The bill could also lead to intimidation of workers). The stock market has also fallen this year as investors have become disenchanted with the Administration.

The Federal Government may face increasing calls to bail out state governments, which have run up trillions of dollars in unfunded, and incredibly generous, pension liabilities to state employees in contracts negotiated with their unions using deliberately-deceptive accounting.

Obama broke his campaign promise to curb earmarks by signing a bloated, $410 billion appropriations bill that contained 8,500 earmarks totaling $7.7 billion. It also broke his campaign promise of a “net spending cut.”

Obama broke seven campaign promises dealing with transparency and clean government in signing the economy-shrinking, $800 billion stimulus package, much of whose contents were secret until shortly before Congress voted on it, and whose 1400 pages went unread by most Congressmen who voted on it.

Earlier, Obama repeatedly broke his promises not to sign bills without first giving the public five days to comment. “Too often bills are rushed through Congress and to the president before the public has the opportunity to review them,” Obama’s campaign Web site stated. “As president, Obama will not sign any nonemergency bill without giving the American public an opportunity to review and comment on the White House Web site for five days.”

But Obama has repeatedly signed laws without providing such notice, such as the Ledbetter Fair Pay Act, his very first law, which he signed less than 2 days after it was passed by the House, with no opportunity for comment. Moreover, in signing the Ledbetter law, Obama made false claims about both the facts of the Supreme Court case that the Ledbetter law overturned, and what the Supreme Court actually held in that case.

The Washington Post‘s David Ignatius, finally losing patience with Obama, criticizes the Administration’s focus on anything but fixing the economy’s underlying ills, calling its economic policies a “phony war” characterized by economic “mismanagement.” “Economist David Smick had it right in The Post this week when he said the administration had a three-pronged strategy: delay, delay and delay. The administration announces a rescue package but doesn’t deliver details; it promises budget discipline but saves the hard decisions for later,” while stacking the Obama “administration with politicians and former government officials,” who lack “experience managing large organizations in crisis.”

Like us, Michael Barone says that the Treasury Department and Fed Chairman Ben Bernanke, through their arbitrary, “ad hoc” approach to the financial crisis (such as their unpredictable and inconsistent decisions about which companies to bail out), have exacerbated the current financial crisis by leaving “players in the financial markets full of uncertainty and fear.”

The Paycheck Fairness Act: Equal Pay Baloney From the Press

by Hans Bader on January 14, 2009 · 7 comments

in Economy, Labor, Legal, Politics as Usual, Regulation, Sanctimony

“News” stories on legislation often read like lazy summaries of press releases put out by the bill’s sponsors. That’s particularly true for so-called “equal pay” legislation, even if it would lead to inequities and frivolous lawsuits.

The Gannett News service is claiming that the controversial Paycheck Fairness Act, which passed the House late last week, simply “elevates the status of gender-based pay discrimination lawsuits to the same level as lawsuits filed by those claiming discrimination based on race, age, or disability.” That echoes press releases by the bill’s sponsors.

But it’s not true. The bill would pressure employers to pay employees in predominantly-female jobs with pleasant working conditions the same as employees in predominantly-male jobs with unpleasant working conditions. Moreover, it would allow people alleging gender-based discrimination to recover damages unavailable to people facing racial, age, or disability discrimination, such as uncapped punitive damages for unintentional “disparate impact” “discrimination” (where a neutral employer practice negatively impacts more women than men, or more minorities than whites).

Federal civil rights law has never permitted punitive damages for unintentional discrimination. It did not permit any punitive damages for most forms of discrimination until 1991, and since then, has limited compensatory and punitive damages in most cases to $300,000. But Gannett News wrongly claims that the Paycheck Fairness Act is simply putting gender discrimination on the same footing as other forms of discrimination by eliminating “the cap on punitive and compensatory damages that has been in place since the early 1990s.” See Brian Tumulty, Clinton’s Last Hurrah: Women’s Pay Fairness, Gannett News, Jan. 13, 2009.

Editorials pushing “pay equity” bills are even worse. They contain blatant errors about Supreme Court’s 2007 Ledbetter v. Goodyear decision on equal pay, which held that a 180-day deadline applied to some pay discrimination claims brought under Title VII of the Civil Rights Act (a longer deadline applies under other laws, such as the Equal Pay Act, which usually gives employees three years to sue).

One recent editorial claimed that Lilly Ledbetter was not allowed to sue more than 180 days after her first unequal paycheck even though “she did not know she was being discriminated against until near the end of her career when she sued.” Another claimed that under the Supreme Court’s Ledbetter ruling, “any employer that could hide discrimination for six months could get away with it.”

In reality, as leading employment lawyer David Copus points out, Ledbetter’s claim was rejected only because she waited for years after suspecting discrimination to sue. See David Copus, “Pay Discrimination Claims After Ledbetter,” Defense Counsel Journal, Volume 75, page 300 (Oct. 1, 2008).

As Copus notes, “Ledbetter admitted at her deposition that ‘different people that [she] worked for along the way had always told [her] that [her] pay was extremely low.’ She recalled that her manager told her in 1992 that her pay was lower than that of other Area Managers, and that by 1994 or 1995, she had learned the amount of the difference. In 1995, Ledbetter told her supervisor that she ‘needed to earn an increase in pay’ because she ‘wanted to get in line with where [her] peers were, because . . . at that time [she] knew definitely that they were all making a thousand [dollars] at least more per month.’” Yet she waited to sue until shortly before she retired, and after the supervisor she accused of discrimination died!

Given Ledbetter’s tardiness and longstanding knowledge that she might have been discriminated against, her lawyer didn’t even claim that she could take advantage of the Supreme Court’s exceptions to the deadlines for workers whose employers conceal evidence of discrimination, leaving them unaware of discrimination, such as “equitable tolling” and “estoppel.”

But in spite of that, the Supreme Court went out of its way to leave such exceptions to the deadline intact, by noting that “Ledbetter should have filed an EEOC charge within 180 days after each alleged discriminatory pay decision was made and communicated to her.’” The Supreme Court also pointedly noted that the plaintiff could have sought relief instead under the Equal Pay Act, which has a three-year deadline for suing (the plaintiff’s lawyer admitted to the Supreme Court that he erred by dropping her Equal Pay Act claim!). It certainly did not rule, as the Los Angeles Times claimed, that “any employer that could hide discrimination for six months could get away with it.” See Editorial, “The Lilly Ledbetter Fair Pay Act Is Back,” Los Angeles Times, Jan. 10, 2009.

But Congress is now on the verge of passing a bill that would essentially eliminate the deadline for suing in pay discrimination cases, the Lilly Ledbetter Fair Pay Act. The bill passed the House on January 9, after supporters falsely claimed that the Supreme Court had imposed a rigid, 180-day deadline for bringing discrimination claims.

Change Is Coming, To Benefit Trial Lawyers

by Hans Bader on January 8, 2009

in Economy, Legal, Politics as Usual, Regulation

Obama promised change, and it’s already happening, at the expense of the poor, consumers, and small business. ”Regulations set to take effect next month could force thousands of clothing retailers and thrift stores to throw away trunkloads of children’s clothing.” That’s the result of a law championed by Obama and trial lawyers, the Consumer Product Safety Improvement Act, which imposes draconian requirements and penalties on sellers of childrens’ toys and clothing. As a result, used clothing stores for poor kids, like Kid to Kid, are going out of business. Some small toy makers will go out of business, and price increases in children’s toys and clothing will also likely result.

The trial lawyers will score another major victory tomorrow, by obtaining House passage of two bills backed by Obama that will greatly expand the ability to sue employers. One, the Lilly Ledbetter Fair Pay Act, would effectively get rid of the statute of limitations in pay discrimination cases. The other, the Paycheck Fairness Act, would pressure some employers to pay people performing different jobs with very different working conditions the same pay, if the different jobs are predominantly held by different sexes, and the different jobs are deemed comparable based on specified statutory criteria.

Supporters of these bills have relied heavily on false claims about what the Supreme Court held in its Ledbetter decision, which did not adopt, as the bills’ supporters claim, a rigid 180-day deadline for bringing pay discrimination cases. (There is a 3-year deadline under the Equal Pay Act, and the 180-day deadline under Title VII, which is simply one alternative avenue for bringing wage discrimination claims, is not rigid, but is subject to equitable “tolling“). False attacks on opponents of the bill were a staple of the 2008 presidential campaign, which featured TV ads from Obama, and mass mailings by state Democratic Parties, falsely claiming that McCain backed wage discrimination against women, simply because he did not support these two bills. Amazingly, the McCain campaign did almost nothing to counter those attacks.